Legal Insights

The Divorce Act and the Family Law Act both recognize that spouses may subsequently seek to set aside the spousal support agreements they have already negotiated domestically. The Divorce Act states that a court is permitted to take the following approach, albeit a narrow one, in determining whether to set aside the domestic contract: The court will review the context and circumstance of the agreement. This should point towards whether the agreement was in substantial compliance with the objectives and spirit of the Divorce Act (i.e. finality, autonomy, and certainty); and, The court will also depict whether the agreement is still a reflection of the parties’ original intention and whether it still complies with the objectives of the Divorce Act. Ultimately, as was evidenced in the leading case Miglin v. Miglin, if the terms were unimpeachably negotiated, the agreement is a comprehensive one, and it stands in compliance with the Divorce Act, the courts will predominantly uphold the terms of the agreement. However, the Family Law Act states that a court has the jurisdiction to set aside an agreement entailing a waiver of spousal support if it was negotiated within unconscionable circumstances. That is, if the circumstances during the execution of...

The Succession Law Reform Act has recently been interpreted to possibly allow for the addition of non-parties to a dependant’s relief claim. In the case of Brash v. Brash Estate, the Superior Court of Justice ruled that the applicant’s children were under an obligation to support the applicant (their mother), and thus should be added to their mother’s dependant relief claim. The case saw a 90-year-old widow opt for an equalization payment against her late-husband’s estate, as she claimed to fall under the legal realm of a “dependant” under the Succession Law Reform Act (Part V – Section 57 of the Act defines the scope of the term “dependant”). She had been left with practically nothing under his will, and therefore sought compensation from the estate that was now in the hands of his children. Being that she had four children of her own that were within their means to support their widowed mother, his children sought to add them as parties to the proceeding. In the interest of justice to the Act and especially to the estate of the late husband, Justice Cornell ruled that her children should be added as parties to the proceeding. Justice Cornell pointed to the...

The difference between a court order directing a review of spousal support and an order to vary support is critical and imperative to understanding what courses of action a judge can take in either circumstance. If a judge has ordered to review support at some specific point in the future, then upon review, the case is completely reopened and the judge may take whatever measures he sees fit in accordance with the objectives of the Divorce Act. In cases where a court is presented with a variation order of support, the judge is restrained from completely reopening and reviewing the case. The only option left for the court is to vary spousal support based on a material change in circumstance. This distinction between a review and variation of spousal support was demonstrated in the case of Marche v. Wagstaff. In this case, the Court of Appeal sent the matter back to the trial court because, in its view, the trial judge had failed to apply the proper course of action when dealing with a variation of spousal support. The Court of Appeal ruled that allowing the husband to discontinue spousal support payments on the basis that his wife did not make a...

As conveyed in the case of Boston v. Boston, there is no absolute prohibition against a spouse recovering double of his/her share in spousal support (commonly referred to as “double-dipping”). However, the Court of Appeal in MacQuarrie v. MacQuarrie stressed the fact that courts will attempt to steer away from a ruling that awards a “double-dipping” of spousal support when it is fair to do so. It is worth noting, that in MacQuarrie, Justice McQuaid pointed to the reality that some cases will call for a double recovery of spousal support in the interest of the principle of fairness. Recent case law suggests that the principle against “double-dipping” surfaces when spousal support is awarded on a compensatory basis rather than one predicated upon necessity. In Senek v. Senek, the Court ruled that, despite a material change in circumstance where the husband had recently retired, the wife was entitled to “double-dip” and receive spousal support from her husband’s pension simply on the basis of necessity. Therefore, when a Court is faced with the dilemma of awarding a double-recovery of spousal support, the Court will render a decision based on principles such as fairness and necessity. To learn more about double dipping...

Estephan v. Estephan is a family law case that has recently been decided by the British Columbia Court of Appeal on the issue of specifically attacking Separation Agreements. Facts The parties started living together in 1986, married in 1996, and separated in 2005. The parties had two children. The wife was the primary caretaker for the children throughout the marriage and the husband was a successful lawyer. The wife has serious health issues that prevented her from working on an ongoing basis. After a mediation, the parties purportedly settled all financial and parenting issues, including the wife providing a release of spousal support in return for a lump sum. The parties had obtained independent legal advice, there was financial disclosure prior to any mediation, the husband did not hide any assets, and the wife received an unequal division of family property. The wife then moved to overturn the Agreement through the family law courts. She also asked the court for spousal support. At trial, the crux of the issue was whether the agreement was signed in "unimpeachable circumstances." Decision at Trial The trial Judge found that the separation agreement was binding. Decision on Appeal The British Columbia Court of Appeal allowed the appeal...

Jans v. Jans is a 2013 decision from the Alberta Provincial Court. Issue The issue of spousal support arose where a single parent was the sole caregiver to a disabled child. Facts The parties started living together in 1989, married in 1991, and then separated in 2010. The wife was a stay-at-home mother for most the marriage and the father was the breadwinner. The youngest child of the marriage had Down Syndrome and lived with the wife. It was clear from the facts of this case that the child would require a significant amount of care from the mother on a continuing basis. The wife worked part time with a yearly income of $25,850 and the husband earned $41,250 per year in seasonal work. Decision The wife earned a compensatory claim for spousal support. Justice P.E. Kvill of the Alberta provincial Court notes that the Spousal Support Advisory Guidelines (commonly known as the SSAG) are not mandatory piece and are only advisory. He finds that the SSAG do not adequately address a situation where one parent is the sole caregiver for a disabled child and therefore, orders that the mother should receive a lump sum of spousal support (equalling slightly more than...